RULE 117

Motion to Quash

Section 1. Time to move to quash. — At any time before entering his plea, the accused may move
to quash the complaint or information. (1)

Rule 117 is about motion to quash. We purposely jump to rule 117 so that it would stick into your mind
that filing a motion to quash should be done before arraignment.

Q: when is the right to move to quash the information or complaint?

A: at any time before entering his plea meaning anytime before arraignment, the accused may move to
quash the complaint or information (Section 1, Rule 117).

When we say motion to quash, that presupposes that the motion is filed before arraignment. Because if
it would be after arraignment and based on the same grounds of your motion to quash the proper
motion is motion to dismiss.

Take note that the motion to quash has grounds

MOTION TO QUASH MOTION TO DISMISS

Filed before arraignment Filed after arraignment

Sec. 2. Form and contents. – The motion to quash shall be in writing, signed by the accused or his
counsel and shall distinctly specify its factual and legal grounds. The court shall consider no ground
other than those stated in the motion, except lack of jurisdiction over the offense charged.

The motion to quash must be in writing, remember the requirements of a motion under rule 15, that it
must be set for hearing How many days?

Every written motion required to be heard and the notice of the hearing thereof shall be served in such
a manner as to ensure its receipt by the other party at least three (3) days before the date of hearing,
unless the court for good cause sets the hearing on shorter notice

Remember the 3 DAY NOTICE RULE.

The motion to quash must contain a notice of hearing and the adverse party must received a copy of the
motion at least 3 days before the hearing.

Q: what should be stated in the motion? A: the factual and legal grounds

Remember that the court cannot consider grounds other than the grounds stated in the motion, except
lack of jurisdiction over the offense charged. This is the only ground that the court
is allowed to quash the information even if not stated in the motion. Other grounds that are not stated
in the motion, the court cannot dismiss the information or complaint.

The rule is similar with that of civil procedure, once the motion to quash is filed, the accused is deemed
to have hypothetically admitted the facts alleged in the information. Now, remember that there are
several grounds that are considered waived if not stated in the motion, the same with the omnibus
motion rule. However there are still grounds even if not raised but are not waived.

There are 4 grounds that are not considered waived even if not stated in the motion

Q: what are these grounds?

There are 4 grounds that are not considered waived even if not stated in the motion

Q: what are these grounds?

A: (a) That the facts charged do not constitute an offense;

(b) That the court trying the case has no jurisdiction over the offense charged;

(g) That the criminal action or liability has been extinguished;

(i) That the accused has been previously convicted or acquitted of the offense charged, or the case
against him was dismissed or otherwise terminated without his express consent.

Q: what are the grounds for motion to quash? A: always remember this, the same as you remember
your grounds for motion to dismiss

Sec. 3. Grounds. – The accused may move to quash the

complaint or information on any of the following grounds:

(a) That the facts charged do not constitute an offense;

We have learned that the information or complaint must

alleged the elements of the crime charged, the acts constituting

the crime and if not all of the elements are present the case

will be dismissed. Like in a case of theft, if the element of

intent to gain is not stated then the case will be dismissed.

The facts charged do not constitute an offense. It is the body of

the information that will control; this is similar to the rules in

civil procedure.

(b) That the court trying the case has no jurisdiction

over the offense charged;

Remember that the jurisdiction of the court is based on the

prescribed penalty not the penalty imposed.

Another is that jurisdiction is based on the crime charged and

not the crime proved, if the accused is charged with the crime

of attempted homicide, even if the crime of slight physical

injuries was proved because there was no intent to kill,

Q: Does do RTC lose the jurisdiction over the case?

A: no. because it is the crime charged and not the crime proved

that will control.

Once jurisdiction is acquired it will stay until the termination

of the case.

Always remember the jurisdiction of the Sandiganbayan

because of all the courts in criminal cases, this Sandiganbayan

is very crucial.

A private person in conspiracy of a public officer can be

charged in the Sandiganbayan together with the public officer.

Q: Supposed the public officer is already dead at the time of

the filing of the case in the Sandiganbayan, can the case be still

under the jurisdiction of the Sandiganbayan as regard to the

private person?

A: yes, as long as there is an allegation that such private person

is in conspiracy of the deceased public officer.

(c) That the court trying the case has no jurisdiction

over the person of the accused;

Q: How can the court acquire jurisdiction over the person of

the accused?

A: either

1. through arrest or

2. voluntary appearance

Take note of this, if the accused wants to question the

jurisdiction of the court or on his person, he should file a

motion to quash on that ground alone. If other grounds are

included in the motion, that ground questioning the

jurisdiction over the person of the accused is waived. If the

accused wants to file on a motion to quash based on the

ground of lack of jurisdiction over his person, he should not

include any other grounds because the moment he include any

other grounds that particular ground is deemed waived. This

is different in civil procedure because the defendant in the civil

case, in his motion questioning the jurisdiction due to lack or

improper service of summons, the defendant can include other

grounds to dismiss. That rule is not applicable in criminal case.

Always remember that.

Q: Is the filing of a motion considered as a voluntary

appearance?

A: according to the SC, the filing of such motion is not

considered as voluntary appearance, it is only a special

appearance.
MIRANDA VS TULIAO MARCH 31, 2006

There are 3 instances that a filing of a motion is not considered

as voluntary appearance.

1. Motion on the ground that the court has no

jurisdiction over his person

2. Motion on the ground that the court has no

jurisdiction over the person of the defendant in civil

cases.

3. When the accused filed a motion to quash the warrant

of arrest.

These are the only 3 motions that filed in court that the filing of

the same is not considered as voluntary appearance but only a

special appearance.

(d) That the officer who filed the information had no

authority to do so;

(e) That it does not conform substantially to the

prescribed form;

Do you remember sufficiency of complaint or information

under section 6 of Rule 110?

One of the requirements of a sufficient complaint or

information is that it is in the name of the People of the

Philippines, if such requirement is not complied with, the

insufficiency of the information or complaint can be a ground

to a motion to dismiss.

(f) That more than one offense is charged except when

a single punishment for various offenses is

prescribed by law;
1 information = 1 offense

No joinder of crimes or offenses in a criminal action this is not

the same with the civil case.

Exception is if the various offenses are punishable by a single

punishment.

Examples are:

Continuing crime or delete continuado or single larceny

doctrine

But be careful in using this remedy.

There was a case, when a person was charged with 10 counts

of BP 22 in one information; his lawyer filed a motion to quash

by reason of this ground. The prosecutor re filed the case in 10

information. Instead of paying only 2,000 for the one check in

that one information, he is now required to pay 20,000 for the

10 counts filed against him. So this is injurious to the client.

That is why be careful in using this remedy.

(g) That the criminal action or liability has been

extinguished;

Do you remember in your revised penal code what are the

grounds of extinction of criminal action or liability?

You can file a motion to quash base on the ground that the

crime has already prescribed.

Again, there are remedies in the rules that you don‘t easily or

directly resort to without pondering on it because some of the

remedies are impractical.

Example: inquest proceeding, as what we have learned that a

person who is to be under to an inquest proceeding can ask for

a preliminary investigation provided that he must sign a

waiver. In the mean time the accused is imprisoned. You will

make a counter affidavit. Does your counter affidavit can

dismiss the case?

A: no. It will make the case to take time longer. So make sure

to use this remedy studiously.

(h) That it contains averments which, if true, would

constitute a legal excuse or justification; and

Take note that justifying, mitigating or exempting

circumstances should not be stated in the information. The

only instant that a circumstance may be stated is when the

accused is a minor, because it affects jurisdiction.

(i) That the accused has been previously convicted or

acquitted of the offense charged, or the case against him was

dismissed or otherwise terminated without his express

consent

Section 3.Grounds. — The accused may move to quash the

complaint or information on any of the following grounds:

(a) That the facts charged do not constitute an

offense;

(b) That the court trying the case has no jurisdiction

over the offense charged;

(c) That the court trying the case has no jurisdiction

over the person of the accused;

(d) That the officer who filed the information had

no authority to do so;

(e) That it does not conform substantially to the

prescribed form;

(f) That more than one offense is charged except

when a single punishment for various offenses is

prescribed by law;

(g) That the criminal action or liability has been

extinguished;

(h) That it contains averments which, if true, would

constitute a legal excuse or justification; and

(i) That the accused has been previously convicted

or acquitted of the offense charged, or the case

against him was dismissed or otherwise terminated

without his express consent.

Another ground not included is:

(j) Non-compliance with KatarungangPambarangay

So, if the crime is cognizable by the barangay, and it

was not referred to KatarungangPambarangay, then it

can be subjected to a motion to quash.

Before we go to Section 4, let us first go to Section 7

Section 7.Former conviction or acquittal; double jeopardy. —

When an accused has been convicted or acquitted, or the case

against him dismissed or otherwise terminated without his

express consent by a court of competent jurisdiction, upon a

valid complaint or information or other formal charge

sufficient in form and substance to sustain a conviction and

after the accused had pleaded to the charge, the conviction or

acquittal of the accused or the dismissal of the case shall be a

bar to another prosecution for the offense charged, or for any

attempt to commit the same or frustration thereof, or for any

offense which necessarily includes or is necessarily included

in the offense charged in the former complaint or

information.

When is there Double Jeopardy?

When we say Double Jeopardy, there is the first jeopardy and

second jeopardy.

Requisites:

(1) The first jeopardy attached prior to the second jeopardy;

(2) The first jeopardy has been validly terminated; and

(3) The second jeopardy is for the same offense as in the

first jeopardy.

Remember also: Elements of the First Jeopardy

Requisites:

1. There must be a valid Information or Criminal

Complaint;

2. That the valid Information is filed with the competent

Court;

3. The Court must have jurisdiction over the offense

charged; otherwise, even if the Information is valid but

it is filed not with the competent Court, there can be no

First Jeopardy.

4. The accused has already been arraigned; and

5. The accused is convicted, has been convicted, acquitted,

or the case is dismissed or terminated without the

express consent of the accused.

Example:
The accused is charged with Homicide under a valid

Information; it is filed with the competent court; the accused

had been arraigned; the accused is acquitted or dismissed

without his express consent. If ALL these requisites (for a First

Jeopardy) are present, the accused can no longer be charged

with the same offense, or any offense necessarily included in

the offense charged. This is what we call the Second Jeopardy.

What do you mean by ―the same offense‖?

It would mean:

1. The offense charged, or

2. An attempt to commit it, or a frustrated stage thereof, or

3. Any offense which necessarily includes or is necessarily

included in the offense charged in the complaint or

information.

Example: Accused is charged with Homicide. When acquitted,

He can no longer be charged with Attempted or Frustrated

Homicide, or Murder.

Note: The meaning of Double Jeopardy in the

Constitution is different from Double Jeopardy under

the Rules of Court.

Double Jeopardy under the 1987 Constitution:

- If an act is punished by a law and an ordinance, even if they

are considered as different offenses, conviction or acquittal

under either shall bar to another prosecution for the same act.

General Rule: If an act is penalized by the Revised Penal Code

and a Special Penal Law, there is no Double Jeopardy.

Example:

Issuance of Bouncing Check. If the issuance and

delivery would constitute Estafa, the accused could be charged

with Estafa and violation of B.P. 22. No Double Jeopardy

because the same act is punished by two different laws.

Example of an Exception to the General Rule:

Statutory Rape. When the child is below 12 years old, it also

constitutes Child Abuse. It also violates the provisions of the

Revised Penal Code. However, according to the Supreme

Court, if the victim is below 12 years old, you charge the

accused under the Revised Penal Code. The accused can no

longer be charged for violation of R.A. 7610.

What is the extent of the right against Double Jeopardy?

Supreme Court: The extent of the right against

Double Jeopardy includes:

1. The accused is charged with the same offense in two

separate pending cases;

2. The accused is prosecuted anew for the same offense,

AFTER he had been acquitted or convicted for the same

offense; and

3. The prosecution appeals from a judgment in the same

case.

Case: Philippine Savings Bank vs. Spouses Bermoy, G.R.

151912, September 26, 2005

Remember: What are the elements of Double Jeopardy;

Also the case of Ivler vs. San Pedro, G.R. 172716,

November 17, 2010

Doctrine of the Case:

“Prosecutions under Article 365 should proceed from a single charge

regardless of the number or severity of the consequences.”

What is ―Res Judicata in Prison Grey‖? (Asked in the Bar)

Case: Caes vs. CA, G.R. Nos. 74989-90, November 6, 1989

The right against double jeopardy prohibits the

prosecution of a person for a crime of which he

has been previously acquitted or convicted. The

purpose is to set the effects of the first prosecution

forever at rest, assuring the accused that he shall

not thereafter be subjected to the danger and

anxiety of a second charge against him for the

same offense.

Note: The Constitution does not prohibit placing a person in

jeopardy. What is prohibited is placing a person in Double

Jeopardy.

However, there are exceptions to the right against Double

Jeopardy. Hence, the accused can still be charged, even if he

has already been convicted or acquitted:

1. When the graver offense developed due to supervening

facts arising from the same act or omission constituting the

former charge. (Section 7a)

-What are supervening facts?

Example: Upon filing the case, the victim is still alive. You can

only file Frustrated Homicide/Murder, and not Consummated

Homicide/Murder. After, the accused pleaded guilty and the

Court sentenced him. But after two months, the victim died

while the accused is serving his sentence. Can he still be

charged for Consummated Homicide/Murder? Yes. This is an

exception.

2. The facts constituting the graver offense became known, or

were discovered, only after the filing of the former complaint

or information. (Section 7b)

Example: You were scratched on the face by your boyfriend‘s

wife. It is unjustifiable for the wife to scratch her husband‘s

prostitute, except if you were caught in the act of sexual

intercourse. You charge the wife with Slight Physical Injuries.

The wife pleaded guilty. But after two months, scars appeared

on your face. Hence, there is serious deformity. Can you

charge the wife with Serious Physical Injuries? Yes.

3. When the accused pleaded guilty to the lesser offense, and

the same was made without the consent of the prosecutor

and the offended party. (Section 7c)

Note: (Last Paragraph; Section 7)

In any of the foregoing cases, where the accused satisfies or

serves in whole or in part the judgment, he shall be credited

with the same in the event of conviction for the graver

offense.

Section 4.Amendment of the complaint or information. — If

the motion to quash is based on an alleged defect of the

complaint or information which can be cured by amendment,

the court shall order that an amendment be made.

If it is based on the ground that the facts charged do not

constitute an offense, the prosecution shall be given by the

court an opportunity to correct the defect by amendment. The

motion shall be granted if the prosecution fails to make the

amendment, or the complaint or information still suffers

from the same defect despite the amendment.

What are the options of the Court once a Motion to Quash is

filed?

1. Grant;

2. Deny; or

3. Amend.

Remember: Among the 3 options of the court, between

―granting‖ and ―amendment‖, amendment is the first option.

- If the Information can be saved through amendment,

the Court should order the amendment.

- But if the Information is so defective that it cannot

anymore be amended, then the Motion to Quash shall

be granted.

- But if the Motion to Quash is not meritorious, than it

should be denied.

Suppose the Court orders the amendment of

the Information, but the prosecution fails to

make the necessary amendment, then you

note Section 3, Rule 17 of the Rules of Court.

Section 3.Dismissal due to fault of plaintiff. — If, for no

justifiable cause, the plaintiff fails to appear on the date of

the presentation of his evidence in chief on the complaint, or

to prosecute his action for an unreasonable length of time, or

to comply with these Rules or any order of the court, the

complaint may be dismissed upon motion of the defendant

or upon the court's own motion, without prejudice to the

right of the defendant to prosecute his counterclaim in the

same or in a separate action. This dismissal shall have the

effect of an adjudication upon the merits, unless otherwise declared by the court.
What if the Court will sustain or grant the Motion to Quash? Prosecution has 2 options: 1. Refile. - Is
there Double Jeopardy?

No. There is only Double Jeopardy if the case is dismissed without the express consent of the accused.
Here, the case is dismissed not only with the express consent of the accused, but also upon his motion.

Note: There are instances where the case will no longer be refiled:

Examples: 1. The ground for quashal is Double Jeopardy; or 2.

There is prescription. *In these cases, the remedy of the prosecution is to file an Appeal.

2. The accused has not yet been arraigned. This is Important. -When the accused is arraigned, the
Information can no longer be amended, except if the amendment is only a Formal Amendment.

Remember: There are four grounds which cannot be waived. Other grounds are waived if not raised
before arraignment: (Rule 117)

Section 9.Failure to move to quash or to allege any ground

therefor. — The failure of the accused to assert any ground of

a motion to quash before he pleads to the complaint or

information, either because he did not file a motion to quash

or failed to allege the same in said motion, shall be deemed a

waiver of any objections based on the grounds provided for

in paragraphs (a), (b), (g), and (i) of section 3 of this Rule.

Section 3.Grounds.

(a) That the facts charged do not constitute an offense

(b) That the court trying the case has no jurisdiction over the

offense charged;

(g) That the criminal action or liability has been

extinguished;

(i) That the accused has been previously convicted or

acquitted of the offense charged, or the case against him was

dismissed or otherwise terminated without his express

consent.

Section 5.Effect of sustaining the motion to quash. — If the

motion to quash is sustained, the court may order that

another complaint or information be filed except as provided

in section 6 of this rule. If the order is made, the accused, if

in custody, shall not be discharged unless admitted to bail. If

no order is made or if having been made, no new

information is filed within the time specified in the order or

cause, the accused, if in custody, shall be discharged unless

he is also in custody for another charge.

What if the accused‘s Motion to Quash is denied, what is the

accused‘ remedy?

1. Go to trial and present evidence. If the accused is

convicted, file an Appeal and cite it as one of your

grounds.

2. If the Court has acted with grave abuse of discretion, you

file Certriorari and/or Prohibition.

Remedies for the Prosecution if the Motion to Quash is

granted:

1. Refile the case;

2. If the case cannot be refiled, Appeal;

3. If the prosecution believes that the accused gravely

abused its discretion, file a Certiorari.

Section 8.Provisional dismissal. — A case shall not be

provisionally dismissed except with the express consent of

the accused and with notice to the offended party.

Note: It must be express consent from the accused

and with notice to the offended party.

What are the common reasons why cases are

provisionally dismissed?

1. Weakness of the prosecution cannot be

noticed and it is vital. The case will not

always be reset but it will be provisionally

dismissed.

Note: There is a time bar to the refiling.

-The provisional dismissal of offenses punishable by

imprisonment not exceeding six (6) years or a fine of any

amount, or both, shall become permanent one (1) year after

issuance of the order without the case having been revived.

-With respect to offenses punishable by imprisonment of

more than six (6) years, their provisional dismissal shall

become permanent two (2) years after issuance of the order

without the case having been revived.

Note that the order of dismissal will automatically become

permanent after one year for cases not exceeding six years, and

after two years for offenses punishable by imprisonment for

more than two years.

Remember: The time bar rule only applies to provisionally

dismissed cases. It will not apply to cases dismissed due to a

motion to quash.

Case: Los Banos vs. Pedro, April 22, 2009.

The time bar rule is reckoned from the receipt of the

prosecutor of the order of provisional dismissal.

Case: People vs. Lacson, April 1, 2003.

 RULE 116

Arraignment and Plea

Section 1. Arraignment and plea; how made. —

(a) The accused must be arraigned before the court where the complaint or information was
filed or assigned for trial. The arraignment shall be made in open court by the judge or clerk
by furnishing the accused with a copy of the complaint or information, reading the same in
the language or dialect known to him, and asking him whether he pleads guilty or not guilty.
The prosecution may call at the trial witnesses other than those named in the complaint or
information.

(b) The accused must be present at the arraignment and must personally enter his plea.
Both arraignment and plea shall be made of record, but failure to do so shall not affect the
validity of the proceedings.

(c) When the accused refuses to plead or makes a conditional plea, a plea of not guilty shall
be entered for him. (1a)

(d) When the accused pleads guilty but presents exculpatory evidence, his plea shall be
deemed withdrawn and a plea of not guilty shall be entered for him. (n)

(e) When the accused is under preventive detention, his case shall be raffled and its records
transmitted to the judge to whom the case was raffled within three (3) days from the filing of
the information or complaint. The accused shall be arraigned within ten (10) days from the
date of the raffle. The pre-trial conference of his case shall be held within ten (10) days after
arraignment. (n)

(f) The private offended party shall be required to appear at the arraignment for purposes of
plea bargaining, determination of civil liability, and other matters requiring his presence. In
case of failure of the offended party to appear despite due notice, the court may allow the
accused to enter a plea of guilty to a lesser offense which is necessarily included in the
offense charged with the conformity of the trial prosecutor alone. (cir. 1-89)

(g) Unless a shorter period is provided by special law or Supreme Court circular, the
arraignment shall be held within thirty (30) days from the date the court acquires jurisdiction
over the person of the accused. The time of the pendency of a motion to quash or for a bill of
particulars or other causes justifying suspension of the arraignment shall be excluded in
computing the period. (sec. 2, cir. 38-98)

Section 2. Plea of guilty to a lesser offense. — At arraignment, the accused, with the consent of the
offended party and the prosecutor, may be allowed by the trial court to plead guilty to a lesser
offense which is necessarily included in the offense charged. After arraignment but before trial, the
accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not
guilty. No amendment of the complaint or information is necessary. (sec. 4, circ. 38-98)

Section 3. Plea of guilty to capital offense; reception of evidence. — When the accused pleads
guilty to a capital offense, the court shall conduct a searching inquiry into the voluntariness and full
comprehension of the consequences of his plea and require the prosecution to prove his guilt and
the precise degree of culpability. The accused may present evidence in his behalf. (3a)
Section 4. Plea of guilty to non-capital offense; reception of evidence, discretionary. — When the
accused pleads guilty to a non-capital offense, the court may receive evidence from the parties to
determine the penalty to be imposed. (4)

Section 5. Withdrawal of improvident plea of guilty. — At any time before the judgment of conviction
becomes final, the court may permit an improvident plea of guilty to be withdrawn and be substituted
by a plea of not guilty. (5)

Section 6. Duty of court to inform accused of his right to counsel. — Before arraignment, the court
shall inform the accused of his right to counsel and ask him if he desires to have one. Unless the
accused is allowed to defend himself in person or has employed a counsel of his choice, the court
must assign a counsel de oficio to defend him. (6a)

Section 7. Appointment of counsel de oficio. — The court, considering the gravity of the offense and
the difficulty of the questions that may arise, shall appoint as counsel de oficio only such members of
the bar in good standing who, by reason of their experience and ability, can competently defend the
accused. But in localities where such members of the bar are not available, the court may appoint
any person, resident of the province and of good repute for probity and ability, to defend the
accused. (7a)

Section 8. Time for counsel de oficio to prepare for arraignment. — Whenever a counsel de oficio is
appointed by the court to defend the accused at the arraignment, he shall be given a reasonable
time to consult with the accused as to his plea before proceeding with the arraignment. (8)

Section 9. Bill of particulars. — The accused may, before arraignment, move for a bill of particulars
to enable him properly to plead and to prepare for trial. The motion shall specify the alleged defects
of the complaint or information and the details desired. (10a)

Section 10. Production or inspection of material evidence in possession of prosecution. — Upon

motion of the accused showing good cause and with notice to the parties, the court, in order to
prevent surprise, suppression, or alteration, may order the prosecution to produce and permit the
inspection and copying or photographing of any written statement given by the complainant and
other witnesses in any investigation of the offense conducted by the prosecution or other
investigating officers, as well as any designated documents, papers, books, accounts, letters,
photographs, objects or tangible things not otherwise privileged, which constitute or contain
evidence material to any matter involved in the case and which are in the possession or under the
control of the prosecution, police, or other law investigating agencies. (11a)

Section 11. Suspension of arraignment. — Upon motion by the proper party, the arraignment shall
be suspended in the following cases:

(a) The accused appears to be suffering from an unsound mental condition which effective
renders him unable to fully understand the charge against him and to plead intelligently
thereto. In such case, the court shall order his mental examination and, if necessary, his
confinement for such purpose;

(b) There exists a prejudicial question; and

(c) A petition for review of the resolution of the prosecutor is pending at either the
Department of Justice, or the Office of the President; provided, that the period of suspension
 shall not exceed sixty (60) days counted from the filing of the petition with the reviewing
office. (12a)

Arraignment is an important stage of criminal proceedings

because it is in compliance of the right of the accused to know

the nature and cause of the accusation against him. It is when

during arraignment wherein the complaint or information is

read to the accused and the accused is asked what is his plea.

The accused must be arraigned before the court where the complaint

or information was filed or assigned for trial. The arraignment shall

be made in open court by the judge or clerk by furnishing the accused

with a copy of the complaint or information, reading the complaint or

information in the language or dialect known to him.

- The court must see to it that the accused

understands the complaint or information. If the accused

cannot understand English, the allegations in the information

or complaint must be translated into the dialect which the

accused understands. For example, if the accused is a Korean

or a Chinese, there should be a Chinese interpreter. It cannot

be allowed to presume that the accused understand it.

Q: Where the court get the interpreter?

A: To his (accused) embassy, or to the consul or

anybody who is acceptable by the parties and the

court to be a competent interpreter (e.g. Language

teacher)

- Since the interpreter is not employed by the court

(he is not a public officer); he is required to take an

oath to faithfully interpret for the accused

And after the reading, the court should ask the accused

whether he pleads guilty or not guilty.

TAKE NOTE: Before the arraignment or during arraignment,

the accused should be assisted by counsel UNLESS the court

allows him to defend himself without any counsel.

THERE ARE FOUR THINGS THAT THE COURT SHOULD

DO BEFORE ARRAIGNMENT (if the accused would come

to court without any counsel):

(1) The court should inform the accused that he has

the right to counsel;

(2) After informing the accused that he has the right

to counsel, the court will ask him whether he intends to hire

the services of his own lawyer;

(3) If the accused so desires to procure the services of

counsel, the court must grant him reasonable time;

(4) If he so desires to have counsel but cannot afford

the services of a lawyer or he did not intend to secure the

services of a lawyer, then the court should assign him counsel

de oficio.

TAKE NOTE: During arraignment, that is one instance

wherein the appearance of the accused is mandatory.

A PLEA OF ‗NOT GUILTY‘ SHOULD BE ENTERED IN THE

RECORDS UNDER THE FOLLOWING INSTANCES:

(a) When the accused pleads ‗not guilty‘ to the

offense charge (or where the accused expressly say so);

(b) When the accused refuses to enter a plea;

(c) When the accused would make a conditional plea

of guilty

-For example, the accused would say that he is guilty

and he said that the crime he committed is not murder but is

homicide.

(d) When he pleads guilty but would raise justifying

circumstances or exculpatory circumstances

-For example, the accused pleaded guilty but he

added that he just committed the crime due to self defense.

(e) When the plea of the accused is ambiguous

When the accused is under detention or he was detained,

meaning the accused was subjected to warrantless arrest,

inquest proceedings, he should be arraigned within ten (10)

days from the date the case was raffled to the court. During

arraignment, the private complainant should be notified. The

attendance of the private complainant is not really

compulsory, so that is why, he is just only notified. Although it

is stated in letter (f):

“(f) The private offended party shall be required to appear at the

arraignment for purposes of plea bargaining, determination of civil

liability, and other matters requiring his presence. In case of failure of

the offended party to appear despite due notice, the court may allow

the accused to enter a plea of guilty to a lesser offense which is

necessarily included in the offense charged with the conformity of the

trial prosecutor alone. “

Judge: But actually his appearance is not mandatory. If the

private offended party would not appear during arraignment,

it will not cause the dismissal of the case.

Q: Why is it that the offended party should

preferably be present during arraignment?

A: That is for the purposes of plea bargaining

because during arraignment, there could already be a plea

bargaining.

Q: What do you mean by plea bargaining?

A: During plea bargaining, among others, the

accused with the consent of the private complaint, public

prosecutor and the approval of the court, the accused may

plead guilty to a lesser offense which is necessarily included in

the offense charged so that he could be give a lesser penalty.

Q: Supposed, the private complainant failed to

appear, despite notice, can there be a plea bargaining?

A: There could be a plea bargaining even in the

absence of the private complainant. The conformity of the

public prosecutor alone would be sufficient, meaning, the

private offended party is deemed to have authorized the

public prosecutor to approve the plea bargaining, if any,

alone.

- If the accused is arrested, he shall be arraigned within ten (10)

days, but if the accused is not arrested, he should be arraigned

within thirty (30) days unless there are justifiable grounds.

If there was presentation of evidence and the arraignment was

overlooked

- The proceedings will be void

In one case, there was no arraignment and the case was

already for decision. The prosecution and the defense were

already done presenting their defense. The judge noticed that

the accused was not yet arraigned. The judge set the case for

arraignment, then for promulgation

- The accused questioned the decision of conviction

- The case shall not be considered void in this case

- People vs. Pangilinan 518 SCRA 358

- People vs. Cabali May 8 1990

- The defect was cured by the arraignment of the

accused

During arraignment there can be plea bargaining

Plea Bargaining

- The process whereby the accused and the prosecutor

in a criminal case work out a mutually satisfactory disposition

of the case subject to court approval. It usually involves the

defendant's pleading guilty to a lesser offense or to only one or

some of the counts of a multi-count indictment in return for a

lighter sentence than that for the graver charge.

Requisites:

1. Consent of the accused,

2. Consent of the offended party if any,

3. Consent of the public prosecutor,

4. Approval of the court

Allowing the accused to plead guilty to a lesser offense is only

one kind of plea bargaining. There can also be plea bargaining

when the accused is charged with different cases.

- Example: He is charged with 5 counts of BP 22. The

plea bargaining would be that he would be charged

with only one count and the rest will be dismissed in

the condition that he will pay the amount stated in

the checks.

- Plea bargaining is not limited to pleading guilty to a

lesser offense

SECTION 2. Plea of guilty to a lesser offense. - At

arraignment, the accused, with the consent of the offended

party and the prosecutor, may be allowed by the trial court to

plead guilty to a lesser offense which is necessarily included

in the offense charged. After arraignment but before trial, the

accused may still be allowed to plead guilty to said lesser

offense after withdrawing his plea of not guilty. No

amendment of the complaint or information is necessary.

- The offense bargained must be necessarily included in

the offense charged

- Necessarily included in the offense charge means

necessarily related

- Before, it is not need that the crime is related to the

offense. If one is charged with rape, a plea bargain

can be done with concealing deadly firearm. Now it is

required to be necessarily included

- Plea Bargaining can be done during arraignment,

pre trial or even during trial before the prosecution

presents its evidence.

- If the accused pleads guilty to another offense,

amendment is not necessary. The information is

deemed amended

There was one case, the accused pleaded guilty to attempted

homicide where the victim died. Attempted homicide is not

the proper crime to plea bargain. It should have been reckless

imprudence resulting in homicide.

SECTION 3. Plea of guilty to capital offense; reception of

evidence. - When the accused pleads guilty to a capital

offense, the court shall conduct a searching inquiry into the

voluntariness and full comprehension of the consequences

of his plea and shall require the prosecution to prove his

guilt and the precise degree of culpability. The accused may

present evidence in his behalf.

- Capital offense - the penalty imposable is death

- RP and life sentence is not a capital offense

- In cases where the accused pleaded guilty to a capital

offense, the court should allow the prosecution to

present evidence.

- Pleading guilty is considered a judicial confession. It

is sufficient to prove the guilt beyond reasonable

doubt. It is binding against the accused and does not

require further evidence but when pleading guilty to

a capital offense; there is need for the prosecution to

present further evidence. The accused may also

present evidence on his behalf.

- ―No person would confess his guilt if he is not truly

guilty.‖

- In a capital offense the life of the accused is at stake

- The court should see to it that the court has

understood as to the consequences to pleading guilty.

That the act of pleading guilty was voluntarily done

without force, intimidation and without influence.

SECTION 4. Plea of guilty to non-capital offense; reception

of evidence, discretionary. - When the accused pleads guilty

to a non-capital offense, the court may receive evidence from

the parties to determine the penalty to be imposed.

- When the offense to which the accused pleaded guilty

is a capital offense, the prosecution is required to

present evidence to prove his guilt. When the offense

charged is not a capital offense, the court has the

discretion to require the parties to present evidence.

The court may or may not require further evidence.

SECTION 5. Withdrawal of improvident plea of guilty. - At

any time before the judgment of conviction becomes final,

the court may permit an improvident plea of guilty to be

withdrawn and be substituted by a plea of not guilty.

- Suppose the accused pleaded guilty but the plea of

guilt does not have any affect in mitigating the

penalty because the penalty was reclusion perpetua,

the remedy is section 5.

- When a non-probationable crime was pleaded guilty,

the plea may be withdrawn based on section 5 and

during re-arraignment, a plea to a lesser

probationable offense may be made in order for the

accused to avail of probation.

- Improvident plea of guilty of the accused cannot be

admitted as evidence against him because he was not

aware of the consequences of his plea.

- The time should be before the judgment of conviction

becomes final.

- Even if the accused improvidently entered a plea of

guilty but still the prosecution was required to

present evidence and there was still sufficient

evidence; the conviction should not be set aside

because there were other evidence to prove the guilt

of the accused. People vs. Documento March 17, 2010

2 Requisites of withdrawal of plea of guilty:

1. Done prior to finality

2. Done with permission from the court

SECTION 6. Duty of court to inform accused of his right to

counsel. - Before arraignment, the court shall inform the

accused of his right to counsel and ask him if he desires to

have one. Unless the accused is allowed to defend himself in

person or has employed counsel of his choice, the court must

assign a counsel de oficio to defend him.

Section 9. Bill of particulars.

Q: When should the bill of particulars be filed?

Ans. It should be filed BEFORE ARRAIGNMENT. Otherwise it

will be deemed waived.

TN: THINGS THAT COULD BE DEEMED WAIVED AFTER

ARRAIGNMENT:

1. Filing of bill of particulars

2. Filing of motion for preliminary investigation

- If the accused was not given PI or there were

irregularities in its conduct, that defect must be

raised before arraignment. Within 5 days after

learning of the absence of the filing of the case in

court.

Note: Bill of particulars is available only to cases already filed

in court. It is not available to cases pending for PI (Sinco vs

Sandiganbayan, 202 SCRA 726)

Section 10. Production or inspection of material evidence in

possession of prosecution.

- This is equivalent to the modes of discovery

under the Civil Procedure.

Upon motion of the accused, the court may order the

inspection, copying or photographing of the written statement

given by the complainant and other witnesses in any

investigation of the offense conducted by the prosecution or

other investigating officers, as well as any designated

documents, papers, books, accounts, letters, photographs,

objects, or tangible things not otherwise privileged, which

constitute or contain evidence material to any matter involved

in the case and which are in the possession or under the

control of the prosecution, police or other law investigating

agencies. (Webb vs De leon 247 SCRA 652)

In Pp vs Webb et al, their state witness, Alfaro, executed an

affidavit taken by the police. That affidavit did not include the

names of the other accused, particularly the name of Webb.

Immediately before the case was filed, Alfaro executed another

affidavit, this time it was taken by the National Bureau

Investigation. Now it includes all the names of the accused

who were not included in the first affidavit. Webb asked the

prosecution to produce that affidavit. Prosec refused arguing

that they had the discretion of which documents to produce as

evidence.

SC: The right of the accused to inspect the evidence of the

prosecution, which are in its possession can be exercised by the

accused even during the PI

- This ruling was included in the amendment of

the Rules of Court, now Sec 10 of Rule 116.

TN: The evidence in the PI are not attached in the records to be

submitted in court. That‘s why the accused can demand that

said documents be produced during trial.

3 grounds that would warrant the suspension of arraignment:

1. Accused appears to be suffering of unsound mind

TN: However if the accused can answer questions such as his

age, name, date of birth, residence or can relay/understand

questions then there can be no suspension of arraignment on

ground of unsound mind.

2. When there is a prejudicial question

3. When there is a pending petition for review of the resolution

of the prosecution with the DOJ or the Office of the President

(with the Office of the President when crime charge is

Reclusion Perpetua, Life imprisonment and death)

TN: the period of suspension of arraignment should not

exceed 60 days.

Rule 118. Pre – Trial

(this rule is always subject to amendments)

-this is commenced after arraignment

- Pre-trial in criminal cases now is deemed mandatory unlike

before;

- Pre-trial is within 30days after arraignment and from the day

the court acquired jurisdiction over the person of the accused;

unless SC provides a shorter period.

- Compromise agreement is not allowed in pre-trial

Pre-trial conference to consider the following:

1. Plea-bargaining;

2. Stipulation of facts;

3. Marking for identification of evidence of the parties;

4. Waiver of objections to admissibility of evidence;

5. Modification of the order of trial if the accused admits the

charge but interposes a lawful defense;

6. Such matters as will promote a fair and expeditious trial of

the criminal and civil aspects of the case;

-in criminal cases, appearance of parties is not mandatory

unlike in civil cases.

- The court may also refer the case as regards the civil

aspect to the Philippine Mediation Center and

eventually to Judicial Dispute Resolution (JDR)

admissions made or entered during the pre-trial conference

shall be reduced in writing and signed by the accused and

counsel, otherwise, they cannot be used against the accused.

The agreements covering the matters referred to in section 1

of this Rule shall be approved by the court. (sec. 4, cir. 38-98)

To be binding against the parties, the agreements and

admissions DURING PRE- TRIAL must be

1. reduced into writing

2. signed by the accused AND counsel

In contrast, ADMISSION DURING TRIAL – not required to be

in writing

Section 3. Non-appearance at pre-trial conference. — If the

counsel for the accused or the prosecutor does not appear at

the pre-trial conference and does not offer an acceptable

excuse for his lack of cooperation, the court may impose

proper sanctions or penalties. (se. 5, cir. 38-98)

In civil cases, appearance of the parties during pre-trial is

MANDATORY

In criminal cases, appearance of the parties during pre-trial is

NOT mandatory.

 If the private complainant does not appear, the case

should not be dismissed.

 If the accused does not appear during the pre-trial

conference, NO WARRANT should be issued against

him because he can waive his presence. There could

be pre-trial in absentia.

 If the fiscal/private counsel will not appear, they will be

subjected to sanctions.
GR: No pre-trial brief required in criminal cases

EXCEPTION: If the court believes that it would

simplify/speed up the disposition of the proceedings, it may

require parties to submit pre- trial brief

Section 4. Pre-trial order. — After the pre-trial conference, the

court shall issue an order reciting the actions taken, the facts

stipulated, and evidence marked. Such order shall bind the

parties, limit the trial to matters not disposed of, and control

the course of the action during the trial, unless modified by

the court to prevent manifest injustice.

RECAP:

 If the parties could not come up with Plea –

Bargaining, the court should not end the pre-trial

conference because there are other things to be

tackled i.e., stipulation of facts, limiting the number of

witness, identifying the issues of the case;

 Pre –trial is very important because it will save the

time, efforts and resources of the court;

For Example:

In the crime of Murder/Homicide,

it is important that the prosecution be able to

prove the death and cause thereof. If during

pre-trial, the defense and prosecution, could

stipulate that the victim died due to stab or

gunshot wounds, then the court can save a

lot because the prosecution need not present

anymore the Medico-legal to prove the cause

of the death.

 The Pre –trial conference likewise would guide the

court during trial specially regarding the issues;